Case ID:160738

George Bikeri Nyakundi v Republic[2020] eKLR

Case Metadata

Case Number:

Miscellaneous Criminal Application 19 of 2020

Parties:

George Bikeri Nyakundi v Republic

Date Delivered:

24 Jun 2020

Case Class:

Criminal

Court:

High Court at Kisii

Case Action:

Ruling

Judge(s):

Anthony Ndung'u Kimani

Citation:

George Bikeri Nyakundi v Republic[2020] eKLR

Court Division:

Criminal

County:

Kisii

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CORAM: A.K NDUNG’U J

MISCELLANEOUS CRIMINAL APPLICATION NO 19 OF 2020

GEORGE BIKERI NYAKUNDI...................................APPLICANT

VERSUS

REPUBLIC................................................................RESPONDENT

RULING

BACKGROUND

1.

The applicant herein,

George Bikeri Nyakundi

, was charged, convicted and sentenced to death for the offence of robbery with violence on the 7

th

July 2003 in

Nyamira Senior Resident Magistrate’s Court Criminal Case Number 109 of 2003

. He filed a

Constitutional Petition Number 51 of 2018

at this Court before Majanja J and he was resentenced to 20 years imprisonment.

2.

The applicant was also charged together with others in

Nakuru Chief Magistrate’s Court Criminal Case Number 55 of 2003

with 3 counts of robbery with violence, 2 counts of attempted robbery with violence and 2 counts of being in possession of a firearm and ammunition. The applicant was convicted and sentenced to death. The applicant filed an application for re-sentencing,

Miscellaneous Criminal Application No. 46 of 2018 at Nakuru High Court

, and was re-sentenced to 30 years for the 2 counts of attempt robbery with violence and 2 counts of robbery with violence all the sentences running concurrently.

3.

The applicant then filed

Miscellaneous Criminal Application No. 93 of 2019

seeking that the 20 years imprisonment meted in

Constitutional Petition No. 51 of 2018 at Kisii High Court

and 30 years imprisonment in

Miscellaneous Criminal Application No. 46 of 2018 at Nakuru High Court

to run concurrently. I allowed the application on 9

th

January 2020.

THE APPLICATION

4.

The applicant has now filed this current application seeking to serve the remainder of his sentence on probation and/or in the alternative that the remainder of his sentence be suspended.

5.

This is premised on the ground that he has already served 18 years and the remainder of his custodial sentence is only 1 ½ years. He claims to be suffering from a chronic disease and is in need of specialized treatment under the care of a specialist doctor.

6.

The applicant also alleges that he has exemplified good behavior and is now a role model to the inmates having risen to the rank of “trustee” which is the highest reformatory stage as provided for under the provisions of the

Prisons Act Cap 90 of the Laws of Kenya

and awarded by the Commissioner General of Prisons.

7.

It is the applicant’s case that he has gone through various trainings among them, tailoring grade 3 and training in biblical studies.

8.

When the application came up for hearing Mr. Kaba, counsel for the applicant, in his oral submissions reiterated the grounds raised in the application.

9.

I have considered the application, the supporting affidavit, and the submissions filed as well as the authorities relied upon.

10.

Mr. Kaba cited the case of

Chris Kasamba Karani v RepublicMisc. Criminal Application No 52 of 2018

in support of the applicant’s case. In

Chris Kasamba Karani v Republic (supra)

, Ngugi J substituted the death sentence imposed on the applicant therein with a custodial sentence equal to the term served plus a probationary period of three years.

11.

As borne out of record, the applicant through the

Constitutional Petition Number 51 of 2018 at Kisii High Court

was re-sentenced to 20 years imprisonment while in

Nakuru High Court Miscellaneous Criminal Application No. 46 of 2018

he was re-sentenced to 30 years for the 2 counts of attempt robbery with violence and 2 counts of robbery with violence, the sentences running concurrently.

12.

That would mean that he would serve the 30 years in custodial sentence as the 20 year sentence is served concurrently with the 30 year sentence. The effect of it is that he should serve a total of 30 years in jail and not 20 years as claimed in his application.

13.

It is clear that the High Court both at Nakuru and at Kisii has previously reviewed the applicant’s sentences to 30 years and 20 years in prison. This court proceeded to make a further order that the sentences were to run concurrently.

14.

By so doing, the courts were clearly alive to the principles of sentencing and the dictum enunciated in the now famous Muruatetu case.

15.

In view of the above, any further attempt to vary the sentences would be unwelcome. It is tantamount to re-litigating an issue already dealt with by the court.

16.

This court appreciates the stated health challenges facing the applicant in prison. The best the court can do is to require he prison authorities to accord the applicant necessary medical attention.

17.

Having considered the application herein in its entirety, I am persuaded that the same lacks merit and I proceed to dismiss the same.

Dated, Signed

and

Delivered

at

KISII

this

24

th

day of

June, 2020.

A. K. NDUNG'U

JUDGE